EXECUTION COPY
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EXHIBIT 99.13
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GSAA HOME EQUITY TRUST 2006-9
ASSET-BACKED CERTIFICATES
SERIES 2006-9
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
XXXXXXX XXXXX MORTGAGE COMPANY,
as Assignor
GS MORTGAGE SECURITIES CORP.,
as Assignee
and
XXXXX FARGO BANK, N.A.,
as Servicer
Dated as of
May 26, 2006
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this
"Assignment Agreement") made this 26th day of May, 2006, among Xxxxx Fargo
Bank, N.A., a national banking association (the "Servicer"), GS Mortgage
Securities Corp., a Delaware corporation (the "Assignee"), and Xxxxxxx Sachs
Mortgage Company, a New York limited partnership (the "Assignor" or "GSMC").
WHEREAS, the Assignor and the Servicer have entered into
the, Second Amended and Restated Master Seller's Warranties and Servicing
Agreement, dated as of November 1, 2005 (the "Servicing Agreement") pursuant
to which the Servicer sold to GSMC on February 23, 2006 (the "Original
Purchase Date") certain Mortgage Loans (as defined below);
WHEREAS, the Assignee has agreed on certain terms and
conditions to purchase from the Assignor certain of the mortgage loans (the
"Mortgage Loans"), which are subject to the provisions of the Servicing
Agreement and are listed on the mortgage loan schedule attached as Exhibit A
hereto (the "Mortgage Loan Schedule"); and
WHEREAS, pursuant to a Master Servicing and Trust Agreement,
dated as of May 1, 2006 (the "Trust Agreement"), among GS Mortgage Securities
Corp., as depositor, U.S. Bank National Association, as trustee (the
"Trustee") and as a custodian, Deutsche Bank National Trust Company, as a
custodian, and JPMorgan Chase Bank, National Association, as master servicer
(in such capacity, the "Master Servicer"), securities administrator (in such
capacity, the "Securities Administrator") and as a custodian, the Assignee
will transfer the Mortgage Loans to the Trustee, together with the Assignee's
rights under the Servicing Agreement, to the extent relating to the Mortgage
Loans (other than the rights of the Assignor (and if applicable its
affiliates, officers, directors and agents) to indemnification thereunder);
NOW THEREFORE, in consideration of the mutual promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Assignment and Assumption.
(a) The Assignor hereby assigns to the Assignee, as
of the date hereof, all of its right, title and interest in and to
the Mortgage Loans and the Servicing Agreement, to the extent
relating to the Mortgage Loans (other than the rights of the Assignor
(and if applicable its affiliates, officers, directors and agents) to
indemnification thereunder) from and after the date hereof, and the
Assignee hereby assumes all of the Assignor's obligations under the
Servicing Agreement, to the extent relating to the Mortgage Loans,
from and after the date hereof, and the Servicer hereby acknowledges
such assignment and assumption and hereby agrees to the release of
the Assignor from any obligations under the Servicing Agreement from
and after the date hereof, to the extent relating to the Mortgage
Loans.
(b) The Assignor represents and warrants to the
Assignee that the Assignor has not taken any action which would serve
to impair or encumber the
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Assignor's ownership interest in the Mortgage Loans since the date of
the applicable Servicing Agreement.
(c) The Servicer and the Assignor shall have the
right to amend, modify or terminate the Servicing Agreement without
the joinder of the Assignee with respect to mortgage loans not
conveyed to the Assignee hereunder; provided, however, that such
amendment, modification or termination shall not affect or be binding
on the Assignee.
2. Modification of the Servicing Agreement. Only in so far
as it relates to the Mortgage Loans, the Servicer and the Assignor hereby
amend the Servicing Agreement as follows:
(a) The second sentence of Section 4.2 shall be
deleted in its entirety and replaced with the following:
"In the event that any payment due under any Mortgage Loan
is not postponed pursuant to Section 4.1 and remains delinquent for a period
of 90 days or any other default continues for a period of 90 days beyond the
expiration of any grace or cure period, the Company shall commence foreclosure
proceedings and the Company shall notify the Purchaser in writing of the
Company's intention to do so."
(b) The first sentence of the second paragraph of
Section 6.2 shall be deleted in its entirety and replaced with the
following:
"If the Company satisfies or releases a Mortgage without
first having obtained payment in full of the indebtedness secured by the
Mortgage (other than a modification or liquidation of the Mortgaged Property
pursuant to the terms of this Agreement) or should the Company otherwise
prejudice any rights the Purchaser may have under the mortgage instruments,
upon written demand of the Purchaser, the Company shall repurchase the related
Mortgage Loan at the Repurchase Price by deposit thereof in the Custodial
Account within two (2) Business Days of receipt of such demand by the
Purchaser."
3. Accuracy of Servicing Agreement.
The Servicer and the Assignor represent and warrant to the
Assignee that (i) attached hereto as Exhibit B is a true, accurate and
complete copy of the Servicing Agreement, (ii) the Servicing Agreement is in
full force and effect as of the date hereof, (iii) the Servicing Agreement has
not been amended or modified in any respect (other than as set forth herein)
and (iv) no notice of termination has been given to the Servicer under the
Servicing Agreement. The Servicer, in its capacity as seller and/or servicer
under the Servicing Agreement, further represents and warrants that the
representations and warranties contained in Sections 3.1 of the Servicing
Agreement are true and correct as of the date hereof, and the representations
and warranties regarding the Mortgage Loans contained in Section 3.2 of the
Servicing Agreement were true and correct as of the Original Purchase Date.
4. Recognition of Assignee.
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From and after the date hereof, the Servicer shall note the
transfer of the Mortgage Loans to the Assignee in its books and records, shall
recognize the Assignee as the owner of the Mortgage Loans and, notwithstanding
anything herein or in the Servicing Agreement to the contrary, shall service
all of the Mortgage Loans for the benefit of the Assignee pursuant to the
terms of the Servicing Agreement the terms of which are incorporated herein by
reference. It is the intention of the Assignor, Servicer and Assignee that the
Servicing Agreement shall be binding upon and inure to the benefit of the
Servicer and the Assignee and their successors and assigns.
5. Representations and Warranties of the Assignee. The
Assignee hereby represents and warrants to the Assignor as follows:
(a) Decision to Purchase. The Assignee represents and
warrants that it is a sophisticated investor able to evaluate the risks and
merits of the transactions contemplated hereby, and that it has not relied in
connection therewith upon any statements or representations of the Assignor or
the Servicer other than those contained in the Servicing Agreement or this
Assignment Agreement.
(b) Authority. The Assignee hereto represents and warrants
that it is duly and legally authorized to enter into this Assignment Agreement
and to perform its obligations hereunder and under the Servicing Agreement.
(c) Enforceability. The Assignee hereto represents and
warrants that this Assignment Agreement has been duly authorized, executed and
delivered by it and (assuming due authorization, execution and delivery
thereof by each of the other parties hereto) constitutes its legal, valid and
binding obligation, enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
6. Representations and Warranties of the Assignor. The
Assignor hereby represents and warrants to the Assignee as follows:
(a) Organization. The Assignor has been duly organized and
is validly existing as a limited partnership in good standing under the laws
of the State of New York with full power and authority (corporate and other)
to enter into and perform its obligations under the Servicing Agreement and
this Assignment Agreement.
(b) Enforceability. This Assignment Agreement has been duly
executed and delivered by the Assignor, and, assuming due authorization,
execution and delivery by each of the other parties hereto, constitutes a
legal, valid, and binding agreement of the Assignor, enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium, or other similar laws affecting creditors' rights generally and to
general principles of equity regardless of whether enforcement is sought in a
proceeding in equity or at law.
(c) No Consent. The execution, delivery and performance by
the Assignor of this Assignment Agreement and the consummation of the
transactions contemplated hereby do
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not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any state,
federal or other governmental authority or agency, except such as has been
obtained, given, effected or taken prior to the date hereof.
(d) Authorization; No Breach. The execution and delivery of
this Assignment Agreement has been duly authorized by all necessary action on
the part of the Assignor; neither the execution and delivery by the Assignor
of this Assignment Agreement, nor the consummation by the Assignor of the
transactions herein contemplated, nor compliance by the Assignor with the
provisions hereof, will conflict with or result in a breach of, or constitute
a default under, any of the provisions of the governing documents of the
Assignor or any law, governmental rule or regulation or any material judgment,
decree or order binding on the Assignor or any of its properties, or any of
the provisions of any material indenture, mortgage, deed of trust, contract or
other instrument to which the Assignor is a party or by which it is bound.
(e) Actions; Proceedings. There are no actions, suits or
proceedings pending or, to the knowledge of the Assignor, threatened, before
or by any court, administrative agency, arbitrator or governmental body (i)
with respect to any of the transactions contemplated by this Assignment
Agreement or (ii) with respect to any other matter that in the judgment of the
Assignor will be determined adversely to the Assignor and will if determined
adversely to the Assignor, materially adversely affect its ability to perform
its obligations under this Assignment Agreement.
7. Additional Representations and Warranties of the Assignor
With Respect to the Mortgage Loans. The Assignor hereby represents and
warrants to the Assignee as follows:
(a) Prior Assignments; Pledges. Except for the sale to the
Assignee, the Assignor has not assigned or pledged any Mortgage Note or the
related Mortgage or any interest or participation therein.
(b) Releases. The Assignor has not satisfied, canceled, or
subordinated in whole or in part, or rescinded any Mortgage, and the Assignor
has not released the related Mortgaged Property from the lien of any Mortgage,
in whole or in part, nor has the Assignor executed an instrument that would
effect any such release, cancellation, subordination, or rescission. The
Assignor has not released any Mortgagor, in whole or in part, except in
connection with an assumption agreement or other agreement approved by the
related federal insurer, to the extent such approval was required.
(c) Compliance with Applicable Laws. With respect to each
Mortgage Loan, any and all requirements of any federal, state or local law
including, without limitation, usury, truth-in-lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity, predatory
and abusive lending or disclosure laws applicable to such Mortgage Loan,
including without limitation, any provisions relating to prepayment charges,
have been complied with.
(d) High Cost. No Mortgage Loan is categorized as "High
Cost" pursuant to the then-current Standard & Poor's Glossary for File Format
for LEVELS(R) Version 5.6(d),
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Xxxxxxxx X, as revised from time to time and in effect as of the Original
Purchase Date. Furthermore, none of the Mortgage Loans sold by the Seller are
classified as (a) a "high cost mortgage" loan under the Home Ownership and
Equity Protection Act of 1994 or (b) a "high cost home," "covered,"
"high-cost," "high-risk home," or "predatory" loan under any other applicable
state, federal or local law.
(e) Georgia Fair Lending Act. No Mortgage Loan is secured by
a property in the state of Georgia and originated between October 1, 2002 and
March 7, 2003.
(f) Credit Reporting. The Assignor will cause to be fully
furnished, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (i.e., favorable
and unfavorable) on Mortgagor credit files to Equifax, Experian and Trans
Union Credit Information Company (three of the credit repositories), on a
monthly basis.
(g) Bring Down. To the Assignor's knowledge, with respect to
each Mortgage Loan, no event has occurred from and after the closing date set
forth in the Servicing Agreement to the date hereof that would cause any of
the representations and warranties relating to such Mortgage Loan set forth in
Section 3.2 of the Servicing Agreement to be untrue in any material respect as
of the date hereof as if made on the date hereof. With respect to those
representations and warranties which are made to the best of the Assignor's
knowledge, if it is discovered by the Assignor that the substance of such
representation and warranty is inaccurate, notwithstanding the Assignor's lack
of knowledge with respect to the substance of such representation and
warranty, such inaccuracy shall be deemed a breach of the applicable
representation and warranty.
It is understood and agreed that the representations and
warranties set forth in Sections 6 and 7 shall survive delivery of the
Mortgage Loan Documents to the Assignee or its designee and shall inure to the
benefit of the Assignee and its assigns notwithstanding any restrictive or
qualified endorsement or assignment. Upon the discovery by the Assignor or the
Assignee and its assigns of a breach of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
to the other parties to this Assignment Agreement, and in no event later than
two (2) Business Days from the date of such discovery. It is understood and
agreed that the obligations of the Assignor set forth in Section 8 to
repurchase, or in limited circumstances, substitute a Mortgage Loan constitute
the sole remedies available to the Assignee and its assigns on their behalf
respecting a breach of the representations and warranties contained in
Sections 6 and 7. It is further understood and agreed that, except as
specifically set forth in Sections 6 and 7, the Assignor shall be deemed not
to have made the representations and warranties in Section 7(g) with respect
to, and to the extent of, representations and warranties made, as to the
matters covered in Section 7(g), by the Servicer in the Servicing Agreement
(or any officer's certificate delivered pursuant thereto).
It is understood and agreed that, with respect to the
Mortgage Loans, the Assignor has made no representations or warranties to the
Assignee other than those contained in Sections 6 and 7, and no other
affiliate of the Assignor has made any representations or warranties of any
kind to the Assignee.
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8. Representations and Warranties of the Servicer. The
Servicer hereby represents and warrants to the Assignee that, to the extent
the Mortgage Loans will be part of a REMIC, the Servicer shall service the
Mortgage Loans and any real property acquired upon default thereof (including,
without limitation, making or permitting any modification, waiver or amendment
of any term of any Mortgage Loan) in accordance with the Servicing Agreement,
but in no event in a manner that would (a) cause the REMIC to fail or qualify
as a REMIC or (b) result in the imposition of a tax upon the REMIC (including,
but not limited to, the tax on prohibited transactions as defined in Section
860F(a)(2) of the Code, the tax on contributions to a REMIC set forth in
Section 860G(d) of the Code and the tax on "net income from foreclosure
property" as set forth in Section 860G(c) of the Code).
9. Repurchase of Mortgage Loans.
Upon discovery or notice of any breach by the Assignor of
any representation, warranty or covenant under this Assignment Agreement that
materially and adversely affects the value of any Mortgage Loan or the
interest of the Assignee therein (it being understood that any such defect or
breach shall be deemed to have materially and adversely affected the value of
the related Mortgage Loan or the interest of the Assignee therein if the
Assignee incurs a loss as a result of such defect or breach), the Assignee
promptly shall request that the Assignor cure such breach and, if the Assignor
does not cure such breach in all material respects within ninety (90) days
from the date on which it is notified of the breach, the Assignee may enforce
the Assignor's obligation hereunder to purchase such Mortgage Loan from the
Assignee at the Repurchase Price (as defined in the Servicing Agreement) or,
in limited circumstances (as set forth below), substitute such mortgage loan
for a Substitute Mortgage Loan (as defined below).
The Assignor shall have the option, but is not obligated, to
substitute a Substitute Mortgage Loan for a Mortgage Loan, rather than
repurchase the Mortgage Loan as provided above, by removing such Mortgage Loan
and substituting in its place a Substitute Mortgage Loan or Loans and
providing the Substitution Adjustment Amount, if any, provided that any such
substitution shall be effected not later than ninety (90) days from the date
on which it is notified of the breach.
In the event the Servicer has breached a representation or
warranty under the Servicing Agreement that is substantially identical to, or
covers the same matters as, a representation or warranty breached by the
Assignor hereunder, the Assignee shall first proceed against the Servicer to
cure such breach or purchase such mortgage loan from the Trust. If the
Servicer does not within ninety (90) days after notification of the breach,
take steps to cure such breach (which may include certifying to progress made
and requesting an extension of the time to cure such breach, as permitted
under the Servicing Agreement) or purchase the Mortgage Loan, the Trustee
shall be entitled to enforce the obligations of the Assignor hereunder to cure
such breach or to purchase or substitute for the Mortgage Loan from the Trust.
In addition, the Assignor shall have the option, but is not
obligated, to substitute a Substitute Mortgage Loan for a Mortgage Loan with
respect to which the Servicer has breached a representation and warranty and
is obligated to repurchase such Mortgage Loan under the Servicing Agreement,
by removing such Mortgage Loan and substituting in its place a Substitute
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Mortgage Loan or Loans, provided that any such substitution shall be effected
not later than ninety (90) days from the date on which it is notified of the
breach.
In the event of any repurchase or substitution of any
Mortgage Loan by the Assignor hereunder, the Assignor shall succeed to the
rights of the Assignee to enforce the obligations of the Servicer to cure any
breach or repurchase such Mortgage Loan under the terms of the Servicing
Agreement with respect to such Mortgage Loan. In the event of a repurchase or
substitution of any Mortgage Loan by the Assignor, the Assignee shall promptly
deliver to the Assignor or its designee the related Mortgage File and shall
assign to the Assignor all of the Assignee's rights under the Servicing
Agreement, but only insofar as such Servicing Agreement relates to such
Mortgage Loan.
Except as specifically set forth herein, the Assignee shall
have no responsibility to enforce any provision of this Assignment Agreement,
to oversee compliance hereof, or to take notice of any breach or default
thereof.
For purposes of this Section, "Deleted Mortgage Loan" and
"Substitute Mortgage Loan" shall be defined as set forth below.
"Deleted Mortgage Loan" A Mortgage Loan which is to be,
pursuant to this Section 8, replaced or to be replaced by the Assignor with a
Substitute Mortgage Loan.
"Substitute Mortgage Loan" A mortgage loan substituted by
the Assignor for a Deleted Mortgage Loan which must, on the date of such
substitution, (i) have an outstanding principal balance, after deduction of
all scheduled payments due in the month of substitution (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of the Stated Principal Balance of
the Deleted Mortgage Loan, (ii) be accruing interest at a rate no lower than
and not more than 2% per annum higher than that of the Deleted Mortgage Loan,
(iii) have a remaining term to maturity not greater than and not more than one
year less than that of the Deleted Mortgage Loan, (iv) be of the same type as
the Deleted Mortgage Loan (i.e., fixed- or adjustable-rate with same periodic
rate cap, lifetime rate cap, and index); and (v) comply with each
representation and warranty set forth in Section 3.2 of the Servicing
Agreement.
"Substitution Adjustment Amount" means with respect to any
Mortgage Loan, the amount remitted by GSMC on the applicable Distribution Date
which is the difference between the outstanding principal balance of a
Substitute Mortgage Loan as of the date of substitution and the outstanding
principal balance of the Deleted Mortgage Loan as of the date of substitution.
10. Continuing Effect.
Except as contemplated hereby, the Servicing Agreement shall
remain in full force and effect in accordance with its terms.
11. Governing Law.
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THIS ASSIGNMENT AGREEMENT AND THE RIGHTS AND OBLIGATIONS
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS
THEREOF).
EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH, THIS ASSIGNMENT AGREEMENT, OR ANY OTHER DOCUMENTS AND INSTRUMENTS
EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF SUCH PARTY. THIS PROVISION
IS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS ASSIGNMENT
AGREEMENT.
12. Notices.
Any notices or other communications permitted or required
hereunder or under the Servicing Agreement shall be in writing and shall be
deemed conclusively to have been given if personally delivered at or mailed by
registered mail, postage prepaid, and return receipt requested or transmitted
by telex, telegraph or telecopier and confirmed by a similar mailed writing,
to:
(a) in the case of the Servicer,
Xxxxx Fargo Bank, N.A.
1 Home Campus, MAC #X2401-042
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Xxxx X. Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to,
Xxxxx Fargo Bank, N.A.
1 Home Campus, MAC #X2401-06T
Xxx Xxxxxx, Xxxx 00000-0000
Attention: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished by the Servicer;
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(b) in the case of the Assignee,
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished by the Assignee, and
(c) in the case of the Assignor,
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished by the Assignor.
13. Counterparts.
This Assignment Agreement may be executed in counterparts,
each of which when so executed shall be deemed to be an original and all of
which when taken together shall constitute one and the same instrument.
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14. Definitions.
Any capitalized term used but not defined in this Assignment
Agreement has the meaning assigned thereto in the Servicing Agreement or the
Trust Agreement, as applicable.
15. Third-Party Beneficiary.
The parties agree that the Trustee is intended to be, and
shall have the rights of, a third party beneficiary of this Assignment
Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this
Assignment Agreement the day and year first above written.
XXXXXXX XXXXX MORTGAGE COMPANY,
a New York limited partnership
By: Xxxxxxx Sachs Real Estate Funding Corp.,
its general partner
By: /s/ Xxxx Xxxxx
------------------------------------------
Name: Xxxx Xxxxx
Title: Managing Director
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Xxxxx Fargo Step 1 AAR
Exhibit A
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Mortgage Loan Schedule
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[On File with the Securities Administrator as provided by the Depositor]
Exhibit B
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Master Seller's Warranties and Servicing Agreement
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[On File with the Depositor]
